Mass. Parole Board Hearing of Benjamin LaGuer

27 Wormwood Street, Suite 400, Boston

June 11, 2003

John Silber

 

            Mr. Benjamin LaGuer is appearing once again before the Parole Board to ask for release from incarceration for a crime he has consistently held that he did not commit.  In previous appearances before the Parole Board he was denied appeal, not on the grounds that he had not been rehabilitated nor on the basis of any evidence that he would pose a threat to the community, but because he refused to express remorse for the crime for which he was convicted.  Thus the Parole Board has repeatedly left him in a Catch-22.  As long as he insists on his innocence, he will not be paroled.  Unless he confesses to a crime he did not commit, he will not be paroled. 

 

            The Parole Board has consistently ignored evidence of the constructive purpose to which Benjamin LaGuer has put his years in the penitentiary.  He became a serious student and completed degrees through Boston University’s program of education in the Massachusetts prison system.  He has also published essays and poems.  An ignorant boy turned himself into a well-educated adult.  In the process he gained the capacity to rediscover himself as a different human being.  Through his personal development he has emerged as a strong, law-respecting individual who looks back on 20 years in prison without bitterness.  As he said to me, “I entered this prison as a very confused late adolescent that occasionally used drugs, didn’t have any purpose in life, and if it hadn’t been for prison I might very well have infected myself with HIV in the use of drugs.  Without prison,” he continued, “I would not likely have ever become educated and I can only be grateful to the prison system and Boston University for providing that opportunity.” 

 

            So convinced of his evidence was Mr. LaGuer that he kept asking for a DNA test, certain that a DNA analysis of the evidence at the crime scene would exonerate him.  When the lawyer requested the test, he was turned down by District Attorney Conte’s office.  First they claimed that DNA testing is expensive, as indeed it is.  I provided most of the money for the DNA test so that it could move ahead.  Others also contributed to the cost.  It boggles the mind to believe that if Benjamin LaGuer had been insincere in his profession of innocence, he would have been so persistent in calling for a DNA test of the evidence at the crime scene.

 

            District Attorney Conte continually opposed all our legal motions for DNA testing.  It took almost two years before Judge Timothy Hillman brought the process to the conclusion that the testing must go forward.  Conte’s office acquiesced only as the consequence of a court order.  The question must be asked:  why was Mr. Conte opposed to a test that cost the state nothing?  Why did he oppose it through one legal maneuver after another for as long as he could?

 

            When the DNA test came back, it showed that Benjamin LaGuer’s semen was found on the victim and thus his guilt seemed to be established.

 

            Benjamin LaGuer did not waver in his protestation of innocence.  Rather, he asked his lawyer to examine irregularities in the prosecutor’s office under the conviction that the evidence used to identify him in the DNA test was tainted evidence.  Benjamin LaGuer claims that the police stole his underwear to get his DNA and that there was no such evidence existing at the time of his trial or at the scene of the crime.

 

            I call the Parole Board’s attention to the irregularities that were involved: 

 

1.      The search warrant issued a day after the crime, July 14, 1983, shows that the police claim to have taken nothing from Benjamin LaGuer’s apartment.  But in a 1989 inventory--six years later--several socks turned up in evidence that the police reported seeing in Ben LaGuer’s apartment. 

2.      The warrant to search LaGuer’s apartment on July 14, 1983, shows that there was no underwear from the suspect.  Fourteen days later on August 3, a detective brought in LaGuer’s underwear.  If that underwear had been at the scene of the crime, why was it not found in evidence on July 14?  Why did two weeks pass before the underwear appeared? 

3.      Notes were withheld from LaGuer’s lawyer at the trial, which showed that the chemist handling the evidence, including pubic hairs from the victim, performed an acid phosphatase test for semen on the interior crotch of the underwear he received on August 3, 14 days after the crime.  But this underwear was never introduced as evidence at the trial.  If it had been at the scene of the crime, it would have been highly incriminating.  But it wasn’t at the scene of the crime.  It hadn’t even been collected until two weeks after the crime. 

4.      The forensic report withheld by the prosecution was received in April 2001 following a request under the Freedom of Information Act.  This forensic report shows “also Benjie’s underwear.”  A fax strip at the top of the report shows that it was sent from the District Attorney’s office to the Leominster police in July 1998, 15 years after the crime. 

5.      An inventory of the evidence taken in 1989--five days before a hearing in which LaGuer wanted to use that underwear to overturn the verdict--shows that the Leominster police had three pairs of underwear associated with the case on May 17, but prosecutors produced only two pairs of underwear in court on May 22, claiming that there were no others.  The prosecution withheld that inventory from LaGuer until April 2001 when the prosecution was required by law to reveal it. 

6.      One of District Attorney Conte’s assistants--Sandra Wysocki--reported in a letter her search for the evidence in this case in July 1998.  This was one year before LaGuer’s lawyers found the seal on the box of evidence, a seal placed there by a judge, had been broken.  In a subsequent press release, Conte blatantly misrepresented his assistant’s reasons for seeking the evidence.  He attributed them to a statement LaGuer made on December 11, 1998, six months after Assistant District Attorney Wysocki sent her letter. 

7.      The prosecution withheld from LaGuer and his lawyers a fingerprint report that might have exonerated him. 

8.      The prosecution linked him to blood from the crime scene that turned out not to match LaGuer’s blood.

 

            These irregularities more than adequately, in my opinion, establish reasonable doubt about the guilt of Benjamin LaGuer and about the means by which his conviction was obtained, including the means by which positive DNA identification was obtained.  What excuse does the prosecution have for all the irregularities I have enumerated?

 

            It is Mr. LaGuer’s intention and that of his lawyer Mr. Rehnquist of Goodwin Proctor to petition for a new trial.  It is my position that a new trial will expose the flaws in Mr. LaGuer’s conviction and result in his release.  On the other hand, it will save Mr. LaGuer and the public a great deal of money if the Parole Board grants Benjamin LaGuer his release. 

 

            Mr. LaGuer has never questioned the terrible, tragic, horrendous and outrageous nature of the crime that was perpetrated on the victim.  His claim has simply been that he was not the perpetrator of that crime.  The sincerity of his claim of innocence has been demonstrated for 20 years, including his pressing for DNA testing or any other means by which to determine the true facts in this case.  It is outrageous that a clear determination of Mr. LaGuer’s guilt or innocence has been clouded--not by Mr. LaGuer but by the irregularities and improprieties of the prosecution.  Those irregularities are so manifest that they should leave, in my opinion, reasonable doubt in the mind of any fair-minded person of Mr. LaGuer’s guilt or innocence.  If the Parole Board then focuses on what he has done with himself as a resident of a penal institution for 20 years, they can see that he has produced a good record and has transformed himself from an immature and irresponsible adolescent into a highly responsible, mature and law-respecting individual--a person who can be released into society without fear of his conduct as a free citizen.

 

 

(More information about Dr. Silber.)